The traditional notion of marriage, that of a union between one man and one woman, goes back thousands of years in cultures from around the world. But at the beginning of the 21st century, a debate is building in this country over the definition of marriage, specifically over the issue of same sex marriage. Are two men, or two women, in a committed relationship entitled to the sanctions and legal benefits of marriage? What roles will popular sentiment and judicial activism have in the struggle to redefine marriage?
Peter Robinson: Welcome to "Uncommon Knowledge". I'm Peter Robinson. Our show today: the legal definition of marriage. Everyone knows what a traditional marriage looks like--one man and one woman joined "till death do them part". In cultures around the world, this notion of marriage has been around for countless centuries.
But here we are at the beginning of the 21st century, and in this country, a debate is building over the definition of marriage; specifically, over same-sex marriage. Should two men or two women be entitled to the same legal sanctions and benefits of marriage as one man and one woman? If so, on what grounds?
And if two men or two women are entitled to be married, what about one man and one, two, three, or more women? In other words, should polygamy still be outlawed?
With us today, three guests. Mike German is general counsel of the Log Cabin Republicans of California, a gay organization. Felicia Park Rogers is executive director of COLAGE, Children Of Lesbians And Gays Everywhere. And Andy Pugno is chief of staff to California State Senator Pete Knight, the man responsible for placing the limitation of marriage proposition on the California ballot this past spring.
Mike and Felicia favor gay marriage. Andy Pugno does not.
Title: The Wedding Zinger
Two events this past spring. Event number one: the Vermont House passed a bill to create civil unions--that's the phrase in the legislation--civil unions, giving homosexual couples virtually all the benefits of marriage. And event number two: voters in California approved a proposition limiting marriage to heterosexual couples only. Who's right, the legislature in Vermont, or the voters in California? Mike?
Mike German: The Vermont court got it right for the legislature to act upon.
Peter Robinson: Now we need to explain that a little bit. The Supreme Court of Vermont--
Mike German: The Supreme Court of Vermont basically said that it's a denial of equal protection under our, Vermont--not the federal--under our, Vermont, constitution to deny the same partnership benefits, let's use that catch-all term, for gay couples that straight couples have. Therefore, legislatures, you go back and come up with some plan, laws, that will remedy this unequal treatment type situation.
Peter Robinson: So the Vermont legislature was acting because it had in effect been forced to act by the Vermont Supreme Court?
Mike German: Mandated, yes.
Peter Robinson: All right. So who's right, Vermont or California, Andy?
Andy Pugno: Vermont was wrong, creating a constitutional crisis in that state. The voters in California were right in asserting the democratic principle of defining how our government is going to promote certain kinds of relationships, and organize ourselves as a society.
Peter Robinson: California voters are right? Felicia.
Felicia Park Rogers: Oh, the Vermont court is absolutely right. They're taking--
Peter Robinson: Not even close?
Felicia Park Rogers: Not even close. They're taking a stand to protect more families than ever before.
Peter Robinson: Okay. Now let's get into it a little bit. Andy, you serve on the staff of Senator Pete Knight who is the author of the Knight Initiative, or Proposition #22, or the Protection of Marriage Initiative; it went under a number of names. But it's the initiative that said what? Can you quote those 14 words to us?
Andy Pugno: The 14 words were: only marriage between a man and a woman is valid or recognized in California. That's the extent of it.
Peter Robinson: And the voters of California voted in favor of that, 61 percent.
Andy Pugno: Which is an overwhelming response, as far as California propositions go. That is a landslide in California politics.
Peter Robinson: That's a big win?
Andy Pugno: Yes.
Peter Robinson: Why was it needed?
Andy Pugno: Well, it was needed because, as most other states had until recently, we had volunteered over 100 years ago to recognize as legal any marriage from another state, from a sister state, setting ourselves up for this situation where another state attempts to redefine marriage as between any two people regardless of their sex.
Peter Robinson: Why propose this initiative now?
Andy Pugno: The definition of marriage, as it was contemplated 125 years ago, when we took this position of recognizing sister state marriages, it was never within our contemplation that that would include relationships between two people of the same sex. And so it is that statutory crisis where we had to firm up what we meant when we said we'd recognize a marriage from another state, and clarify that means between a man and a woman.
Peter Robinson: So it's a simple.
Felicia Park Rogers: There is no statutory crisis. There is no state that recognizes same-sex marriages. There is no place in the world where two people of the same gender can marry. This is a false crisis. Not to mention that this initiative was sneaky. Californians thought that they were voting for same-sex marriage or against same-sex marriage. I believe that's why the vote was so skewed. They were not--
Peter Robinson: Hold on. Go ahead, explain that. This is a new one on me.
Felicia Park Rogers: Californians thought that they were voting to approve or to disapprove whether or not people of the same sex could marry in California. They didn't understand that it was about other states. They didn't understand the full faith and credit law--clause of the Constitution. And they didn't understand that there is no state in the United States where same-sex couples can get married. There is no crisis.
Andy Pugno: I disagree with that.
Peter Robinson: Hold on. Hold on. There may be no states that currently allow same-sex marriage. But what happens when a couple in a civil union goes to another state?
Title: More Weddings and a Funeral
Imagine that a member of a civil union--I'm using the Vermont phrase--in Vermont comes to California on vacation, gets killed in a car accident, and then his Vermont partner, or her Vermont partner, under the civil union, sues in California to be recognized as next of kin?
Now we have some judges in California who, I think it's at least plausible to argue, would take that argument very seriously. That is to say, even though no state recognizes the term "marriage", we have in Vermont this strong movement toward effective marriage, and you could get it accepted in California through the back door.
Therefore, Andy's concern is legitimate. Mike?
Mike German: I handled a case very analogous to that, what, 13 years ago, Koon versus Joseph. A gay couple attempted to get on a No. 19 Polk Street bus in San Francisco. The bus driver lets one on, doesn't pick the other one off. The other guy says, let me off, my boyfriend is back there. The bus driver stops, gets off the bus, punches the other guy out in front of his boyfriend, breaks his cheek bone.
We sued to extend what's called in California the bystander recovery rule to this gay couple.
Peter Robinson: Who's we by the way here?
Mike German: Myself representing Mr. Koon as the plaintiff.
Peter Robinson: All right, it's a private litigation?
Mike German: We sued the City and county of San Francisco. Yes, civil suit. After twice taking it under resubmission, the California Court of Appeal, in a very fractured three-judge separate decision said, there is no right to sue for an unmarried couple's emotional distress, but it's up to the legislature to deal with it.
Lo and behold, about five years later, in a case, Murphy versus Dunfy I believe, out of New Jersey, the New Jersey Supreme Court adopted my theory of recovery and said, yes. In a tort case like this, the legal status of the couple involved is irrelevant. They have demonstrated they have a close relationship with each other. The sort of emotional distress that a loved one would experience in seeing another punched out, killed in your example, whatever, is compensable at law.
Peter Robinson: You just made my case, or you just made Andy's case.
Mike German: I'm happy to...
Peter Robinson: There is this kind of creeping movement toward recognizing more and more--getting closer and closer to the standard--the standing, legal standing, benefits and so forth, of marriage among gay couples. Didn't work in California 13 years ago; 5 years later it did work in New Jersey. So you grant--I mean, what I'm just trying to do is get a good firm reaction to the proposition that Andy's concerns are not unreasonable. That if--this is a separate question, we'll move to that next--but if you do believe that same-sex marriage is wrong or detrimental to society or ought in one way or another to be prohibited, you have a legitimate concern, because in one way or another it's coming at you.
Mike German: But in doing so, in taking that position, as illustrated by my example, my case--
Peter Robinson: Right.
Mike German: --what you're doing is basically imposing unequal treatment upon similarly situated people.
Peter Robinson: Okay, separate question, however. Separate question.
Mike German: Admittedly, yes.
Peter Robinson: Okay.
Felicia Park Rogers: Society is changing; that's true. And we're not going to be able to turn it back with these laws.
Andy Pugno: But if society is going to change, it needs to be done by society. I mean what we're looking at here is judicial activism. I mean the movement towards same-sex marriage has been spear-headed by cases filed in state after state.
Peter Robinson: I want to come back to that.
Next issue: what benefits would marriage confer on gay couples that they don't have right now?
Title: For Better or For Worse
As it stands now in California, are gay couples legally permitted to own their homes jointly?
Mike German: In the traditional non-sexual-orientation context of a joint tenancy or tenancy in common, the answer would be yes.
Peter Robinson: But it has no bearing whatever on their relationship?
Mike German: No, that's traditional property law.
Peter Robinson: Okay, so there's nothing new there. They can hold joint bank accounts. Again, it's no recognition of their relationship--
Mike German: Correct.
Peter Robinson: --but they can do so.
Mike German: Under the same theories, yes.
Peter Robinson: Okay, and can they adopt children together?
Felicia Park Rogers: No.
Peter Robinson: They cannot do so legally?
Andy Pugno: That's untrue. There are hundreds of children every year that are adopted by gay couples in California.
Felicia Park Rogers: Single parents. There are not--you must be a married couple to adopt in California and in every state.
Andy Pugno: That's simply not true. Governor Davis says--made it clear that that, as far as the Department of Health services go, that they can not recommend against an adoption--
Felicia Park Rogers: This is rhetoric. Only one of the parents becomes the legally recognized parent unless they go through a second-parent adoption process, which is a whole additional step that they must take.
Peter Robinson: Okay. So gay couples can effectively adopt, if you're a gay couple you can have an adopted kid by one parent. It's cumbersome, it may be difficult, but it can happen, right?
Felicia Park Rogers: It is possible in some counties of California.
Peter Robinson: Okay, so my question then is, what additional benefits, or what additional legal standing, would be achieved by some sort of civil union law here in California, or out-and-out gay marriage?
Mike German: Felicia hit upon a very important point.
Peter Robinson: Right.
Mike German: This costs time, and it costs money to go through these various steps. To set up a joint tenancy, a tenancy in common, not everybody is a lawyer. Not everybody can figure it out for themselves, or trust the bank to do it. Inheritance rights. You know, if you don't have the sort of marriage that's sanctioned by the state, whether in the form of traditional marriage, or in a civil union type marriage, inheritance rights fall by the wayside.
These are basic rights that people take for granted. They're not special rights that are being sought?
Andy Pugno: They're not basic rights. They're special--
Mike German: Inheritance is not a basic right? Come on.
Peter Robinson: Well, it's not in the Bill of Rights.
Andy Pugno: In California, you can leave property to anyone you want. And we even have a model will that is provided by the state that includes the ability to check the box to leave all your property to your domestic partner.
The idea of inheriting without a will, that is, a gay partner or an unmarried partner I should say, inheriting a deceased person's property when that person did not leave behind any will, any instructions of what to do with their property. And so in the same way that an unmarried couple-- Peter Robinson: Just goes through probate.
Andy Pugno: Exactly. So gay marriage, or some kind of civil union slash gay marriage would apply to unmarried couples, gay couples, same-sex couples, all of the rules of probate, intestate succession.
Peter Robinson: And you're opposed to that?
Andy Pugno: That's correct.
Peter Robinson: And you're in favor of it?
Felicia Park Rogers: Yes.
Mike German: Definitely.
Felicia Park Rogers: Absolutely.
Peter Robinson: Let's move from questions of legal benefits to questions of morality.
Title: As Different as Knight and Gay
On the one hand we have a bundle of practical considerations, and it turns out they're not insignificant. The question of having to hire a lawyer to go through effectively a double adoption, is more trouble, more time, more expense, so forth.
But then on the other hand we have what I sense underlies the issue, which is, the notion that gay couples, what they want is also somehow the notion of legitimacy or normalcy or--
Mike German: Peace of mind.
Peter Robinson: Peace of mind, is that it?
Mike German: Yes, very much a part of it. Very much a part of it.
Peter Robinson: --that comes from formal recognition of their relationship by the state. Now here's where I'd like to return to that phrase that you used, treating similarly placed people differently?
Mike German: Right. Equal treatment for similarly situated couples.
Peter Robinson: Which is a fundamental principle in law.
Mike German: Exactly, in equal protection law.
Peter Robinson: Right. This may be a crude way of doing it, but I'm trying to figure out how you kind of approach the value judgments. Could we all agree, for example, that we'd be opposed to polygamous marriage, right?
Andy Pugno: Well, you can't be opposed to polygamous marriage if all you want marriage to be is a loving committed relationship between consenting adults. There is no logical rational reason to limit it to two individuals if you also are removing the requirement that you're binding together the opposite sexes.
Peter Robinson: Now, that strikes you as crazy, but it strikes me as plausible, that if you remove the notion of a man and a woman, then you not only--you extend it to gay couples, but who knows what else you're going to be extending it to. Felicia, no?
Felicia Park Rogers: Polygamous marriage is a false issue. We're not talking about that. We're talking about two individuals--
Peter Robinson: No, no, but I'm talking about, just to flesh out the values--
Felicia Park Rogers: No, but it's a slippery slope.
Peter Robinson: But how do you keep from sliding down that slope?
Felicia Park Rogers: By only talking about including same-sex couples to be able to be married. By talking about their families as being equal and deserving of the same treatment of heterosexual couple families.
Peter Robinson: Okay, but on what grounds? On what grounds? Moral grounds? Or grounds of usefulness or wholesomeness to society, do you say: marriage is all right for heterosexual couples, marriage is all right for same-sex couples, but marriage is wrong for three people, four people, five people? Polygamous marriage is wrong. Where is the moral or social standard that you apply?
Andy Pugno: Our country has a stronger history of polygamy than it does of same-sex marriage. I mean there are probably--if you just look at the percentages of--first of all, the country, that is gay, in the gay lifestyle, and then the subpart of those who are even interested in same-sex marriage, that is such a tiny minority in the country compared to thousands and thousands of people that would, or used to, prior to it being criminalized, practice polygamy. It has a stronger--
Peter Robinson: Does the way that the country dealt with polygamy give us any insight on the issues surrounding same-sex marriage?
Title: Brides and Prejudice
It turns out that in the late 19th Century there were a spate of cases that challenged Congress' authority to suppress polygamy in Utah, in what was then the Utah territory before Utah became a state. It goes to the Supreme Court, Murphy versus Ramsey, and Justice Matthews writes as follows, I quote: No legislation can be supposed more wholesome and necessary in the founding of a free, self-governing commonwealth than that which seeks to establish it on the basis of the idea of the family, as consisting in and springing from the union of one man and one woman in the holy estate of matrimony, the sure foundation of all that is stable and noble in our civilization.
What we have here is a status quo that has been worked out democratically across the decades. Here it is. All he's trying to do is protect it. All he's trying to do is protect something that has been worked out democratically across decades. And the two of you want to change it.
Felicia Park Rogers: Well, the beauty of democracy is that democracy allows for societies to change and grow. That's why we like democracy.
Peter Robinson: Okay, but you just got whipped in the last democratic encounter here in California. So--
Andy Pugno: And the process by which the advocates have been seeking same-sex marriage--
Peter Robinson: Go ahead, make your statement.
Andy Pugno: The process we've seen, the cases filed in Washington, D.C., Washington state, Hawaii, Alaska, Vermont, New York, these are--I mean the democratic process is being circumvented. And there is essentially a process of shopping for a liberal judge somewhere that will do this and spring it on the people who are an unwilling party.
Peter Robinson: Also, an old American tradition, shopping for judges.
Andy Pugno: That's true. And they found a state in Vermont where it is exceptionally difficult to short-circuit the judiciary by changing their constitution.
Peter Robinson: Right.
Andy Pugno: It takes years and years.
Peter Robinson: The Vermont constitution turns out to be very difficult to amend.
Andy Pugno: Unlike Hawaii where the people rose up, changed their constitution.
Peter Robinson: He makes the valid point here that this stuff is taken by a judicial act of its own, so you have this kind of creeping sense on the part of ordinary Americans, ordinary Californians, that somehow or other, social norms are being upset, readjusted, it's all happening somehow off to one side. They get a chance to vote on it in a good clean way, and they vote against it.
Mike German: Two points. First, the common law like the democratic process is an evolutionary process. We don't have a civil law system in this country like they do in Europe. We don't pigeonhole people, cases and events into little boxes, and then deduce a rule from that and get a result. The common law evolves on the basis of experience.
Judges are also a product of a democratic system. In California many of our judges are elected. Those that aren't elected initially are appointed and then stand reconfirmation.
Second, haven't we been here before? Well, not necessarily. That goes back to what you said earlier. This case that you mentioned from 1885 is apples and oranges, as Felicia mentioned. What was at issue there, and therefore what raised the issues, determined the response, the range of responses to the issue, is polygamy.
Peter Robinson: Well, he says one man and one woman, that's clear.
Mike German: Fine. Gay rights, gay marriage, was not even at issue in that case. It was proper not to discuss it at that time because it was not--the issues were not framed before the court that way.
Peter Robinson: So hold on, now, Mike. You don't mean to suppose that gay marriage really is nothing--is no assault on the values of ordinary--that there's very little adjusting that people need to do?
Mike German: I do assert that, yes I do. What is the big threat to marriage from gays coupling? Let's call it forming civil unions. There was a recent survey done, I wish I could cite the source, but perhaps Felicia would know if no one else does, but in determining the success rate of marriages in the state of California, guess who had the worst success rates? The fundamentalists. The point is that the people who are railing most strongly against gay civil unions appear to be the people with the least success in maintaining their own marriages. And I've got a problem with that.
Peter Robinson: What's the main problem that Andy has with legalized gay marriage anyway?
Title: Domestic Altar-cations
Suppose California, suppose Governor Davis, not only formulated a civil union law, but just an outright marriage law, for gay couples. So what happens next? What's so bad about that?
Andy Pugno: When you have legalized gay marriage that becomes an institution that the people through their government are participating in. The debate has shifted from individual rights of people--gay, lesbian and straight--to live their lives the way they would like to versus a public institution of marriage, heavily regulated, that is something that belongs to the public. People talk about this being a matter of privacy, and that it's just about personal relationships. But if you look at the thousands of laws that regulate marriage, it really is a public institution.
Peter Robinson: Right, it's a public institution.
Andy Pugno: And the people who have--many people who have moral objections to the idea of same-sex marriage, they are compelled to participate through their government in sanctioning and promoting a kind of lifestyle they don't feel comfortable with.
Peter Robinson: There are certain encumbrances, if you choose to live a gay--in a gay relationship, but on the other hand, gone are the days when anybody is going to come after you. You can live your life--
Mike German: Not necessarily.
Felicia Park Rogers: I wish that were true.
My goodness, I get calls from people everyday who say their ex-spouse is taking their child away. One of their--I have kids who go to schools where their teachers make fun of them for having a gay parent in front of all their classmates, and nothing is done. They get beat up.
This is a public institution, and everybody who is part of the public should have access to it. Children deserve to have a family sanctioned by the state.
Peter Robinson: Hold on. Now wait a minute, Felicia, I can't let you say that, because you've already said, not everybody. You've already said you don't want polygamy to be part of this public institution.
Felicia Park Rogers: As you said, polygamy has been taken care of. We're talking about marriages between two people. That's what we're talking about.
Peter Robinson: But you have your value judgments, too. You have your values. What I'm trying to grapple with is--
Felicia Park Rogers: We're not arguing about that though.
Peter Robinson: --how in a democracy--how in a democracy--yeah, but your value judgments are just flatly opposed--flatly opposed--you two are entirely in favor of, comfortable with and in favor of same-sex marriage. Then you've got Andy and, evidently, a large percentage of Californians, no doubt a large percent of Americans, who just say it's morally wrong. It's just wrong.
So my question is: You're in this position, how do you sort out, how do you live with this situation? How do you sort out a compromise in a democracy?
Mike German: I would suggest that you educate. And the Constitution of the United States, and of California, for that matter, are both great educators. The constitution cannot restrict or prohibit or enforce, I should say, all private biases, but it can't give force and effect to them.
We've seen that principle restated time and time again. You don't have a situation where the constitution can reinforce these things.
Peter Robinson: Andy, how do you combat the notion that it's a private bias?
Andy Pugno: Well, every time Congress takes a vote, it expresses a collection of a few hundred private biases. I mean all of our laws express moral judgments. In California, prostitution, strictly criminalized. In Nevada it's allowed in certain counties. Those are moral judgments that we make.
Everything from the murder statute on down to dog licensing reflects moral judgments that we make that are influenced--
Peter Robinson: So you stand on the law?
Andy Pugno: That's precisely right.
Peter Robinson: Let's close it out with a couple of predictions, if we may.
Ten years from now, will Vermont have done away with this term "civil unions" and begun simply using the term "marriage" for gay couples? What do you think, Mike?
Mike German: I think the term, the full-blown term, marriage, will come into force and effect once the churches start recognizing gay unions.
Peter Robinson: Can't be done politically?
Mike German: Not politically, no. We have to maintain a separation of church and state. I think that's a good thing we've got in this country, a wonderful tradition. We need to keep that going.
We're starting to see that. The reformed Jews are considering it right now. The Methodists are having less and less of a problem with it. As a Catholic, I think that the Catholic Church will eventually come around, but not with this Pope.
Peter Robinson: Not with this Pope? Not in this Pope's lifetime, as the joke goes.
Andy Pugno: I think within--I'd predict that within 10 years they will have experienced civil unions as a nearly identical alternative to marriage, a separate but equal institution, you might say. Within 10 years, the same Vermont Supreme Court that said the legislature must create this separate but equal institution, will hold that separate but equal is inherently unequal and strike down the barrier and legalize gay marriage.
Peter Robinson: So you see a kind of creep going on?
Andy Pugno: Absolutely.
Peter Robinson: Felicia, Vermont 10 years from now?
Felicia Park Rogers: I see, 10 years from now, a country that is more committed to stable families, allowing more access for children to be in nurturing homes, to have access to both of their parents--
Peter Robinson: You see Vermont leading the way?
Felicia Park Rogers: And I see Vermont being a leader in that, in helping open the doors for those families.
Peter Robinson: Okay, quick last question, which I'll begin with you. Ten years from now, will gay civil unions be recognized in California? Will there be another proposition to repeal the one that Andy just worked on? What do you think?
Felicia Park Rogers: I hope that Californians see their way to being more fair-minded and more open and understanding of the different ways that families are formed.
Peter Robinson: Andy, is that--is your proposition on the books to stay?
Andy Pugno: This proposition is on the books to stay for a long time, longer than 10 years. But we will see--we may see in 10 years a point where the creeping piecemeal assembling of gay marriage through legislation will start to raise people's concern that we are creating marriage by another name, one piece at a time, in the statehouse.
Peter Robinson: Mike?
Mike German: We'll have full blown let's call it gay marriage, for use of a short-hand term, in California. I think there is a huge generational context here, and the generations of younger folks that I deal with all point to, yes, this is not the issue that older folks are making it to be. We will have this in California in the future.
Felicia Park Rogers: Seventy percent of all voters under 30 voted against Proposition #22.
Peter Robinson: Mike, Andy and Felicia, thank you very much.
Andy Pugno: Thank you.
Mike German: Thank you.
Peter Robinson: Marriage: does it need to be limited? One man, one woman. Or is there room for everyone? I'm Peter Robinson. Thanks for joining us.